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tv   Today in Washington  CSPAN  December 27, 2012 6:00am-9:00am EST

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pleased to let it develop a state-by-state level and not get involved in the issue just yet.
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cried -- archives here in washington. this is about 20 minutes. >> good evening. i'm the archivist of the united states and is a pleasure to welcome you to the national
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archives in theater this evening. a special welcome to our friends at c-span and the other media outlets who are with us tonight. we have a lot of special guests in the audience today but i want to single out a special welcome to senator mike reed who is a good friend of the national archives, senator reed from utah. [applause] who himself clerked for a future supreme court justice, judge alito when he was at the u.s. court of appeals on the third circuit. welcome. on monday the constitution of the united states turned 225. tonight's program is one of several that the national archives is presenting this month in celebration of the founding document, signed in philadelphia on september 17, 1787. tonight we are honored to welcome two distinguished guests to explore the past, present and future of united states
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constitution. our partners for tonight's program in honor of those of the constitution are the federalist society and the constitution accountability center and thanks for the opportunity to collaborate with you this evening. the declaration of independence was long heralded as the icon of our independence to nationhood. the constitution did not get as much attention. its declarations and it's for parchment pages to the declaration single sheets to cheer most casual readers. the lack of celebration however works to its advantage. over the years, the declaration was exposed to sunlight, dust and smoke but the constitution was never exhibited. when you view both original documents upstairs in the rotunda, you immediately see the difference. the declaration is faded to the point of olestra ability and while the constitutconstitut ion looks nearly as fresh as it did when the scribe jacob shell is
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was entered into the continental constitutional convention. celebraticelebrati ng constitution day on september 17 has been a long-standing tradition here at the national archives. it was the one day of the year won all four pages of the document were to lay to the public. since 2003, we have been able to display all four pages year-rounyear-round and the new cases in the rotunda at this year we have added something special to the 200 connie -- 225th anniversary. for the first time we will display the resolution of transmittal to the continental congress ,-com,-com ma sometimes referred to as the fifth page of the constitution. this momentous document describes how the constitution was ratified and put into action. you'll be able to see it starting on friday, september 14 and it will remain until constitution day on december 17. on the morning of constitution day, the highlight event of our celebration takes place.
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and naturalization ceremony for 225 new citizens to the united states. while the national archives has hosted this for decades it never ceases to the support and to defend the constitution for the actual document. link urge you to return over the next several days for more discussions on the special event of the constitution's birthday. on monday september 17 at -- from noon until 2:00 we do a happy birthday to the u.s. constitution and the theater and a special program in celebration of the signing of the constitution in the first 225 guests will join the founding fathers for cake after their performance in the allen theater. on wednesday ,-com,-com ma september 19, at 7:00 p.m., the constitution and the war of 1812 again here in the theater. this is the 2012 claude moore
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lecture, journalists roger mudd moderates a panel discussion on what so proudly we hail, the messages of the war of 1812. tonight we are privileged to hear two distinguished guests discuss the past, present and future of the united states constitution. akhil reed amar has joined yale university where he teaches constitutional law at the college and the law school. he received both his b.a. and j.d. from yale and serves as an editor for the yale law's journal. after clerking for stephen breyer when he was judge of the u.s. court of appeals for the first circuit professor amar joined the faculty of yale in 1985. professor amar is a coeditor of the leading constitutional law casebook, decision-decision- making and is the author of several other books including the constitution and criminal procedure, the bill of rights creation and reconstruction,
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america's constitution a biography and most recently america's unwritten constitution, the president's and decibels we live by. the honorable clarence thomas has served as an associate justice of the supreme court of the united states for nearly 21 years. he attended conceptual cemetery and received an a.b. from the college of the holy cross and his j.d. from yale law school. he served as an assistant attorney general of missouri from 1974 to 1977, an attorney with the monsanto company from 77 to 79 and legislative assistant to senator john danforth from 1979 to 1981. from 1981 to 1982 he served as assistant secretary for civil rights in the u.s. department of education and chairman of the u.s. equal opportunity commission from 1982 to 1990. he became a judge of the u.s. court of appeals and in the district of columbia circuit in 1990.
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president bush nominated him as associate justice of the supreme court and he took his seat on october 23, 1991. ladies and gentlemen please welcome justice thomas and professor amar to the stage. [applause] [applause] >> the thank you ladies and gentlemen for that extraordinarily gracious ,-com,-com ma warm welcome. thank you to the national archives and to the staff for making this event possible and thanks also, special thanks to the federalist society and the constitution accountability center and thank you justice thomas for being with us today as we marked the 225th earth
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day, 225th anniversary of our constitution. i guess i would like to start our conversation with the words of the constitution, we the people, and what that phrase means to you and how that phrase baby has changed over time thanks to amendments and developments. who is this a wee and landed folks like you and me become part of this, this week? >> well, obviously it wasn't perfect. that's an understatement. but you grow up in an environment, at least i was fortunate enough, where we believed it was effective. you know it's very -- pretty much acceptable or maybe
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in vogue somewhat today to be so critical or almost invariably critical of the country and pointing out what is wrong. there are obviously things wrong. there are obviously things wrong when i grew up in georgia, and that was pointed out. but there was always an underlying belief that we were entitled to be a full participant in we the people. that is the way we grew up. it was the way the nuns who were all immigrants would explain it to us, that we were entitled as citizens of this country to be full participants. there was never any doubt that we were inherently equal and it said so in the declaration of independence. of course there were times later
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on bad i too became quite critical and would make glib remarks in deciding the not so pleasant and reciting the pledge of allegiance or sing things that i thought were -- [inaudible] people can youtube and it's around forever. i grew up in an environment where the people around me believed that this country could be better, that the framework for it was there. we the people, we used to memorize the preamble of the constitution. it's so fascinating to think of these black kids in the segregated school in savannah reciting the preamble to the constitution of the united states or standing out in the schoolyard, saying the pledge of
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allegiance every day before school. everything so that obviously in front of you was wrong. you can go to the public library. you can't live in certain neighborhoods. you can't go to certain schools, but despite all of that, you lived under the advisement of people who said it was still our birthright to be included and continued to push not only to change the law but to maintain that belief in our hearts. i think today we sort of think that all of the work is done with the law in the heavy lifting for us was done here, because the people who raised us believed it was in here. the nuns who taught us believed it was in here. you know today, i was just down at louisiana state university and the go-to the southeast
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conference, there is this tremendous enthusiasm about football. i met die-hard nebraska fan myself so i understand that enthusiasm. but can you imagine, when i grew up, a country that did not allow us to fully participate and one of the 1 -- birthrights passed on i still have it, i still believe that it's -- and i think i resist that kind of attitude that it's all lost. it's the same attitude i have been. it's ours. it's ours to make the best of, to disagree about, to work with, to realize its imperfections but to keep working with it so when i think of we the people, there is a lot i think of the exclusion but the possibility and the eventuality of the
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inclusion of you and me. no one cares that what, 40 years ago you and i would not be sitting here talking about the constitution of the united states except to say we were excluded. and now, it's hardly noticed. except you're a sterling professor of law so they probably notice that. [laughter] >> you talked about k. for yourself, my friend. [laughter] >> you know, that is nice of you to say but you know, i really look back and i have to say the same people. i have tried to say it over the years and i think in the city, people have dismissed as well, you are being a pollyanna or something like that, but i still say it's all the people who never gave up and had every reason to.
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first in that line would be people like my grandparents. not the cynical people that these unlettered people who never ever quit, who got up every day and believe that even if they didn't make it, those who came after them would. it's almost as though they self sacrificed. they were self-sacrificing, offering for these two boys and the generations to come afterwards. so you know, people say you haven't, i haven't done this or that. you know, i think you and i both have people who gave the last full measure for us and many many ways. so i can't really take too many bows for that. >> there is so much there and over the course of our conversation i hope to reach the
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declaration of the independence and the last full measure, "the gettysburg address." you mentioned who was then and who wasn't, we and how that changed over time. ike just want to say little bit -- though i agree with you that it is a little bit cynical. there were solutions and we can't forget that. we didn't need everyone but just to pick up on that in who will segue toward some of the other things who have talked about. just so the rest of us, so we can all begin to appreciate how extraordinary this birthday is that we celebrate. so, 225 years ago, let's say august, 1787, self-government exists almost nowhere on the planet outside of the new world.
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you have a few sheep and herders in switzerland before there were swiss banks. [laughter] and holland in the netherlands are in the process of losing self-government and england has the house of commons but also has the house of lords and a hereditary king and so, you look back -- so it's a vast multitude on the planet but no self-government in russia, and china and india and africa, most of europe. you look back through the previous millennia and you have democracy and self-government existing in very few tiny city states, athens because they can't defend themselves militarily and even when it did exist people would speak the same language and worship the same god, the same climate and culture, a very small little
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area. that is all of world history. and you look today, democracy is half the planet. if you asked me what changed, what was the hinge of all of that i think i would say the word we the people. 225 years ago the hinge of world history because all of the conclusions at the time it was way better and more perfect and for the first time ever in the history of the planet, an entire continent got to vote on how they and their posterity would be, and there were lots of exclusions from our perspective that we wouldn't exist as a democratic country in the democratic world but for that. i would say it's the hinge of all modern history. before democracy almost nowhere and in the project is begun. it's not perfect. better than what we had before
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but not at all as good as what we have now. i think we have gotten better and i want to talk a little bit about how that process is it getting better. we the people do ordain and establish and it's pretty stunning what we actually did. it's not just that we voted. there was a pretty standard vote in a boat that could be lost and in fact it was voted down in rhode island and north carolina. but you wrote a very interesting -- in a case called ohio versus mcintyre and we also talked about free speech. people could be for the constitution are against it and no one was shut down and no one was put in prison. if they like george washington or didn't like george washington
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or gave an anonymous speech, just a proliferation, robust and wide-open uninhibited. up and down the continent. that is the year that we bark today, this month, the beginning of that so some thoughts on free speech and at that moment as you look back and then we will work our way forward in time. >> i don't have a lot of company in my views on mcintyre and anonymous speech but if you think about it, 225 years ago, you had the articles of confederation. you had a congress that did not work. it was not functioning. oh. [laughter] [applause] that was inadvertent. but you had ,-com,-com ma it was very interesting convention that
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arguably wasn't quite what they were authorized to do. you have the resolution that is going to be on exhibit that is interestingly worded. someone throws the word unanimous in it and it's used in an interesting way. but you know, think of going to washington and trying to get mount vernon and he doesn't want to leave because he's been away for over four years and he doesn't want to leave. he goes to philadelphia and they do it. they come up with this document, four months, and now you have it, going to the congress to the people. >> to the people. >> to the people to ratify. you know when i read about it, i
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am one of those. i get chills because that is the beginning of the development of the place that allows you and me to be here with all its warts. it's sort of the way i feel about my hometown of savannah. it's got a lot of problems but it's my home. that is the way i feel about the constitution. it's got a lot of problems. i don't know if i could do any better, but it's ours and we get a chance through this wonderful opportunity that we have in different roles, to make it all work, to try to understand, to try to make the country work. you know may be a part of the thing we could do is celebrate the birthday. would you have a constitution of everybody there was -- would you have the amendments to
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the constitution if mason was more cynical than adams? would you have the declaration of independence if jefferson was a cynic rather than someone -- [inaudible] would you have a constitution of medicine didn't care? all the nick of that stuff, you know? i have come to the point and i tell my law clerks, that i have been in the city doing these jobs now for half of my natural life. the only reasons to do them are the ideal things. it's always the things you believe in, the constitution of this country. i know that's not what to say in washington d.c. and you're supposed to say there's some angle, some methodology, this
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originalism, textualism. there are all these useless peripheral debates other than just doing our job as we can in trying to live up to our respective oaths, to make it all work. this is what we are talking about. in your book, that is what you are saying. you are saying we have the text but you also also have overhear this unwritten part. with all these things are happening over here to make it all work. no, that's not me. >> you mentioned both the declaration and the bill of rights. set the stage about why the constitution, a thing really worthy of our celebration, acknowledging who was part of it. men of ancient democracy that ever existed in the world, even if they had democratic constitutions, never had a democratic constitution making process. none of that was put to vote by the people themselves in athens
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or pre-imperial rome. 1776 as great as the declaration waswas, and not put to a vote, and it's the middle of the war and you can't have a fiscal -- philosophical debate and the constitution is put to a vote in which eight of the 13 states, property qualifications are lowered or eliminated compared to what they were before and then a year-long conversation in which people say, you know there are some problems here. its crowdsourced and we the people actually say, where the rights and we get the bill of rights because of that conversation. even before there is a text of the speech there is the practice of freedom of speech, five times the bill of rights uses the same phrases, the people, the first in the second in the fourth in the ninth and i think it's because it's coming from the people. this process of correction that
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you are talking about i think is connected to the democratic idea. when you get people together, you have to make sure that they are not secret. you have got to get them and keep them on board, keep them believing, keep them part of the game. maybe they won't win and they do and they call that the bill of rights. to keep the conversation going so that you can actually perfected and make it -- mcaleese make it better than it was the day before with the bill of rights. >> i don't know whether they are anti-federalist. maybe they didn't quite believe that the national government should be given unfettered authority. maybe they were the people who are saying we have got to have the bill of rights. you have to have authority with protection for the individuals. i don't know whether i would call them an anti-federalist that they were people who
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certainly saw that they had these god-given rights and they thought that this would be an intrusion upon it. think about it. would you have the bill of rights if you didn't have those that we would call anti-federalist? i doubt it. >> you are a fierce believer in independence of thought, and dissent, and not even george washington or ben franklin might've had a complete monopoly on all of this so it was usual that you had at george mason critiquing it. >> i think george mason seems like a pretty stubborn guy. the other thing was that you know, i think that he made it clear, he did not undermine the process. if you go back and look at the last days, george mason did not
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throw a monkey wrench into the works. what he did was he made it clear. he made it absolutely clear, he had his list of objections. he thought you needed a bill of rights. he was not a politician. he had -- he was not into making a lot of friends and allies. he was going to argue his point and then he was going to return. i happen to think that was pretty effective. he wasn't against it. remember he was very helpful in developing the constitution, with a strong national government. but, he wanted to build this wall that would make it clear that did not exist in sort of contradiction or in opposition to these individual rights. again, he wasn't cynical. he wasn't an obstructionist, but
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he was i think rightly adamant that it exists. >> here is one way of putting that a maybe we will start to move forward in time with your permission. the people who opposed the declaration of independence, we never hear from them again. they are basically cast politically and to avoid. the people who opposed the constitution, you think it could be better still and calling it anti-federalist. they become not cast out, they become present in united states. james monroe, vice president of the united states eldridge carriage or justices on the supreme court, daniel j. so it's extraordinary how they are kept in the process. >> but think about it, continues to play out. it's the same debate. what are the limits? i hear people today making it seem as though that when you talk about limits on the national government, that's
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antithetical to the existence of a national government. it's been in the original argument. the argument was always about limits. you know, you hear this kind of glib talk, oh these people are trying to push us back to the articles of confederation. that's ludicrous. that is not helpful. the very man who pushed for these limits actually helped develop the constitution. so the debate when you move it forward, whether you look at mccullough versus maryland, it's always arguing about whether there should be an national -- you are arguing about the same limitations. you can fast-forward to today. that debate is embedded in the very formation of the country from the beginning, from the time we adopted the constitution that debate existed and that debate has continued.
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there was a civil war fought not just over slavery which obviously i am the right side, winning. [laughter] i have a personal interest in that, and there are lots of these things, but at the same time you understand that there were some people still fighting that debate. engaged in that debate and subsequent to that even with the adoption of the 13th, 14th and 15th amendments, you still have it so we are still talking about what are the limits of national government? what is the role of national government? we protect individual rights and individual liberties etc.? >> let's actually move forward in time and start talking about the events that presses the 13th, 14th and 15th amendments and i want our audience -- you and i know this but i want everyone out there on c-span2
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recognize that this month isn't just -- it's a very special anniversary. it's not just a 225th anniversary. i think the hinge of human history, this we the people moment, is also 150th anniversary to the month of the first initial emancipation proclamation, which is issued on immediately after the battle of antietam, which is fought september 17, 1862, 75 years to the day after the constitution has gone public. so, we -- this month not just the 225th anniversary of the constitution but the sauces quintanilla -- subsequent henao and he will have more to say about that at the end.
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so talk about some of our forebears, our founding fathers and you have some thought about every founding and about father abraham? you mentioned washington. may be bringing linking lincoln into the picture to and your thoughts about this new burst of freedom that begins with the emancipation and you have a family story. your grandfather, you ride in the book my grandfather sun sun and you mentioned that is grandfather was a freed slave so some thoughts about that? >> you know, for us in the south, abe lincoln was the great emancipator. i know there is a revision movement today. i am a big abe lincoln fan. i have photos of lincoln. i have a problem with the cynical revisionist. it a blank and meant quite a bit to us.
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you begin to see what the country is. it's like the beginning. you have got the south is one way of life with the peculiar institution that in my opinion is the single greatest immorality in the country. how can you have a free country with slaves? we understood that. it's a contradiction that contradicts the very founding of the country. but i at any rate, when i grew up, lincoln, he was the author of real liberty. you have the emancipation prop nation and field order number 15. >> tell us what that is. >> that was the order that freed the slaves in the eastern part of coastal georgia. and of course my family was on
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the island and plantations along the coast of georgia for over 100 years. we are from an island again just south of hilton head in the carolinas. the family would remain on that island even after the civil war. it was a storm actually, a hurricane in the 1890s that drove them into the more mainland areas. but the fascinating thing, the people who came from that not only maintain their culture but there was always this desire to be a part of this country. lincoln was the first -- 40 acres and a view on that promise went on for years. yet it was unfulfilled, but there was that promise and it was a promise of freedom, our
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promise of the 48th review so you would hear people talk about the lack of freedom in the same way that they talked about the unfulfilled 40 acres with a view. it directly affected my -- so it has a very special place in my heart and certainly i keep in my office a copy of order number 15 and a copy of the emancipation proclamation because i have course keep it mounted on my wall. by particular interest in it and what it is done for those who came before me. we are from a plantation, or part of my family is from a plantation south of savannah. my grandfather was raised and that is where we farmed, just across from a plantation where his grandmother had -- and his great-grandfather flooded in the 18 70's right after he was freed.
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as my grandfather said we all are going to be raised in the ways of slavery times and that is the way we were raised on that farm. it was a very hard life but it is a life and a way of life in which i am enormously proud. there is not than a moment in my life when i've had nothing but the greatest pride in the people who grew up under the most difficult circumstances with the dignity unmatched in the city than any other great city in this country. it's almost as though it is a nobility of humanity simply because of the dignity with which they bore the negatives that got in the way and the harshness of life. and as i say in my book, and i mean it, my grandfather is still the greatest person who i know of and who i know about. you tell me a person who could
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have accepted and not have a father, lose a mother and handed from pillar to post to his grandmother, no education and segregation, jim crow laws and more -- he rose above it and insisted that his grandson rise above it. fight it, participate, eliminate the wrong, but not be consumed by it or destroyed by it. i don't think you can get much greater than that. >> you and i are huge lincoln men. do you think at all in the culture that lincoln still gets his due? in so many ways, so much talk about the founding fathers and yet you said house divided
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speech. because of a contradiction and frederick douglass and others, that has a claim to be the greatest generation too. dewey today in our law and our culture give enough credit to the re-founding? >> i like to think of the great moments in our history when we talk about of course the revolution certainly the constitution that we celebrate now, 225 years. it's all coming apart and the country as we know it today is reshaped after the civil war. you teach in the area of the constitutional law. you are an expert. what would it look like if there
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were no 14th amendment passed? what would be the application of the bill of rights to the state states? so there is a whole -- there's so much that goes beyond the war. i tell my law clerks, you have to go to gettysburg. we pulled these little threads out of what we do every day. talk about textualism, originalism. is much bigger than that. you know i see some people here who argue before the court. i not once thought that the people who came there did not understand that what we did is larger than who we are. that we were engaged in an enterprise to preserve something that is truly great. do we agree? no more than the framers agreed, no more than mason and hamilton and re. but do we say they did not want
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it to work? no. that is the beauty of we the people. we the people agreed that we should have country, exactly what it should be. not to the point that we destroy it, but certainly to the point that we think we are protecting it and we are still here. so i think that lincoln saw what was happening. he saw the slavery, we could not exist half slave and half free. you couldn't do it. it was not going to happen. he understood that. you have to have the union and he knew ultimately it could not be a slave country that allowed slavery. now i know you have your revisionists and people quibble. i don't have time to pick all that land out of everything.
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lincoln preserved the union. frederick douglass you mentioned. i also have a portrait of him and i've had that portrait sunday -- since i won on the court a little over two decades ago. i'm a big fan of frederick douglass. what courage it took for him, a freed slave, to cite the declaration of independence, not something that is foreign to this nation but the founding document of this nation. he cited that is exhibit a in what was wrong with slavery. exhibit a. he did need to go to another, any other shores or any other ideology. it was our founding ideology. how can you be inherently equal and have slavery? how can you be free and enslaved another? he understood that. so we fought a great war. we go to gettysburg and what does he say?
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it's up to us, to make it all worthwhile. we are the living. we have the opportunity, finite amount of time to make it work. i hear people, you disagree with someone. that person's motives must be bad. i don't think that mason's motives could probably say that he is a dour man who maybe he wanted to make and so i war but
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rather as people who are i have. [inaudible] and in the years i have been there i honestly have they don't agree with so yes, i am a frederick douglass person. grew up loving these people want
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you to think of a little. you grew up in this
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and fighting at valley forge and the revolution, he would say it was worth it. to leave mount vernon to go to the constitutional convention. he would say was worth it, to leave to become president. he would say it was worth it. all of the absentees, i think they would say it and i think any of us should be able to say it. while i'm at lincoln person, i
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am a booker t. washington, frederick douglass, and i keep those around me to remind me of what our obligations are, yours and mine. >> the first time i think i heard you, you were talking about the declaration of independence. which of course mr. lincoln alluded to right out of the gate in the gettysburg address, four score and seven, 1863 minus in 87, that 1776 when do the math. our father began this imagery and any quotes from the declaration. our fathers brought forth a new nation and dedicated to the proposition that all men are created equal. that is the language from the declaration. you have often, you have thoughts about the declaration. it's up there in the rotunda alongside the gettysburg address and the emancipation and the constitution itself.
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i invite you, as you have talked about lincoln, to tell us a little bit about what you think of the declaration and its part in the american story. >> in the beginning we have these rights we are endowed with certain inalienable rights and we give up some of those rights to be governed by consent. that is critical. for me, when i started though, it wasn't so much about government. it was about what was the best argument against slavery. it was as simple as that. when you grow up under segregation, you take the founding document and you use it as the point to make to others who think that segregation is right. this is our founding document and we are inherently equal.
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the nuns ingrained in us the declaration and our faith in god. we were created equal, and they didn't have to go to the bible or a religious doctrine. they went to the founding doctrine, that we are created equal. that was always this thing you carried. when you were treated badly, when people try to -- you know i hear people say it affected your self-esteem. it never affected mine. absolutely at no point in my life because from day one, we were equal. it said so. the nuns said so in my grandfather said so and by golly the declaration of independence said so. it may have taken a war and it may have taken jim crow laws but still no matter how
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contradictory that was that document said we were equal. that is what got me started again, to read this great document, to reread it and talk about it. to talk about the founding. who knows how i became a judge, you know? i was only interested in the best about this country. with all its problems, the things that made it worth having and lo and behold, to come to the understanding that this founding document is a wonderful thing. and that was in the mid-1980s. i was the chairman of the eoc worrying more about budgets and getting in all sorts of trouble over the age discrimination and employment act and this hearing in that hearing, none of which was of great consequence as far as the structure of the country.
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but spending hour after hour learning about what you write about and teach so eloquently. i think that for me, that simple document, i think that one declaration of independence, and to then go to gettysburg and to think about its charge, to think about the carnage and the lives lost, the great battle before in fredericksburg and the wilderness. you talk about antietam and you talk about shiloh, manassas, all these battles people defending what they think, a way of life for slavery or what have you, all of that, all that bloodshed
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settle this contradiction. and we won. we have our country. and i like to go to gettysburg to say to my clerks, do we deserve this? do we deserve the sacrifice for the country that we have and are we living up to that? are we doing our part? >> just go anyplace. think of the people at the battle of the bulge or think of them at you know, during any war and just ask yourself, you know, let's assume without debating whether you should have had this, that, this war that, we have done our part and the thing i was told, was going to be a priest. that was really the only sort of goal that i had.
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what is a priest? you are called to do something. every ex-seminarian it's all nice like -- your call now is to do your part. to be able to earn the right to be here. >> you can mention in your book very prominently on the first page in the last page and i will mention it again, god. the declaration of independence has a very prominent, several prominent -- from the very beginning nature is god endowed by our creator. the very and in the most military language, appealing to the supreme judge of the world for the rectitude and i'm not talking about roberts, as great
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as he is. now, if you look at the constitution, and the references aren't so prominent. janie randall has talked about, one of my students wrote in adjusting paper about sundays accepted in the constitution but it's not very prominent in the preamble or another articles. just this week we heard debates or conversations about god on the coin, whether there was sufficient references to god on 9/11. so your thoughts about the role of references to god in our national discourse and our public culture. >> we don't think it's been prominent in the central part of our nation.
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you can argue nihilism or atheism. the first amendment, congress shall make no law to establish religion or their free exercise thereof. in other words, stay out of it. obviously it assumes -- and there is god. we knew what the religions were. the baptist conventions, they weren't like worshiping a pope. they believed in god. i'm not going to revise history. i grew up in a religious environment and i'm proud of it. i am proud of it but i thank god i believe in god or i would probably be enormously angry right now. so they i am grateful and unapologetic. >> one interesting sort of --
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it is remarkable when we started talking a little bit about how the sub by this change over time and we could have could've also edit the 19th amendment, women becoming part of this ever greater ark of democratic inclusion. >> and prohibition. i will drink to that. [laughter] >> but that was repealed. in general most of the amendments, as you said before, maybe more perfect. >> or less perfect perk is. >> but then we got rid of it. >> i don't drink so i understand. [laughter] >> on revision is pretty extraordinary, the constitution freed every american to be eligible for public office. there is no religious test, and that wasn't a prominent feature of the state constitution. a lot of them actually had
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religious test. >> obviously new england, you had established a religion so i understand that but i'm just simply saying that the country -- i grew up in a time where people were respectful of religion and religious people. i'd grew up where the church was open all the time and nobody broke and. nobody engaged in religious conduct in the church. our church was in the inner-city. i walk to 6:00 mass to be an altar boy and i was a little guy. a u.s. government surplus book tag and scared of dogs more than anything else. but you know, i really like where i grew up. i can't transpose that are superimposed at, transpose it who are superimposed on the current day that our country is what it is. there are some of us who but for
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faith, we would be nothing. to tell me it was okay to keep trying. there was nothing in front of me that explained all of the hurt and the pain, the things that happened even in the city. there was nothing that could deal with it and to make you a better person, to force you to be a good person when everything around you could be mean and cynical and react and punch back so yeah, i mean i know all the smart alex. they know better than i do but they weren't there. they weren't in the tenements. they weren't in a key. they didn't walk in those steps and i thank god for the environment i was in of the people who have strong faith and the house i was than with people of strong faith. the schools i went to, and if we
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impose it on anyone else? no, it was ours. .. a belief in the trinity or in a belief in the trinity or any h particular -- it strikes me atok this moment if we can look back 225 years later at the process. this was a project where most americans at the founding where mainstream protestants
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mainstream prod tentism today remains a huge part of the cup -- culture here is interesting. none of the justices on the court is a mainstream prod protestant. >> i have no idea. you have to answer that. >> of the four presidential candidates. [laughter] >> you spend lot of time following the stuff. >> only president obama who had a father -- it was an extraordinary openness actually. >> you know, i think we talk about it a lot. you know, i liked it when i was a kid. you didn't talk about it a lot. you lived your life. that to me -- we talk a lot about this person is that, this person is this. and then we pretended -- we i liked it when people didn't care. you -- i was catholic.
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you talk about a minority within a minority, within a minority. i was a black catholic in savannah, georgia. [laughter] now that is a what is an insular . >> discreet. >> insular minority. so but nobody bothered us. i was the only black kid in my seminary 1965. '64 there was another young man. i was there by myself for two years in savannah. nobody bothered me. i hear people say these things about their tolerance. there are identifying who is what a lot more. the -- i kind of like the idea that when you started, here you and i, neither one of us is caucasian. nobody is pointing it out. we pointed it out and said you are indian dissent.
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i don't know what people say. people say horrible things. i'm not black, so i'm a little doubtful i should say i'm black, you know. [laughter] but, i mean, here we are. nobody one is bringing it up. i think what you should be more concerned about is where we are we are the ivy leagues nap seems to be more relevant. but even with that, even with can nitpick all of it. these are good people. these are people who i go back to what i said, they are continuing what was started 200-years ago the great debate. they are good people. i mean, i sit next to justice ginsburg, how often we agree? >> [laughter] a lot actually. >>. >> we do? [laughter] yeah -- most of many cases are
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anonymous. >> the anonymous cases -- yes. [laughter] and the -- i agree with the nomtion cases. [laughter] i like that. that is a screwed move. there is one category of cases we agree. what are they? the anonymous cases. [laughter] but she is a good person. she is a fabulous judge. i like sitting next to her. you know, we are friends. look -- i think that what is you want. you want people who still are able to work together and get it right, but don't change their mind because they are there. just because it's sort of the fad. you want them to think. same way you had at the convention, we the people. the ratification debates. i would -- i want to spend time
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going back because that was a time -- you talked about people actually saying what they believe. people fighting about it, people caring about it. people are writing articles about it. federalist papers, people traveling, people having meetings at homes and in their churches, you can't do that, i guess. but you having people meeting in their -- in town halls. all of the time they are debating. people who actually read the constitution, this is fascinatings. that is something else too. do they actually read it? they tread back then. and they were not as universal available. there was no internet to read it on. but they somehow printed it and read it and talked about it. and the people who couldn't read had it read to them. and formed opinions. so i think, yes, it was a debate
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about this country, the formation, how it would evolve and what direction. i think it continues. it's the same debate. so you can talk about the commerce club, you can talk about equal protection, due process, substantiative due process, the first amendment, it's all the same debate. and it is the appropriate debates. it's one that i would wish would sort of try to reach the same eye level that we saw in philadelphia. and we're going see at other points in the ratification process. who writes like -- the sort of defenses and arguments you see in the federalists today? who writes them? who sits at home and drafts
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arguments we see, letters, you see -- you never [inaudible] these were people who were engaged and knew the constitution and these were not scholars. these were not people who had appropriated to themselves license, the soul license to interpret or talk about the great document. these were foreigners. these were business people. some of them who have formal education, some who did not. they cared about the country. i think you need to have that today. i think that, you know, i go back to your book, you talk about the written and unwritten constitution. the unwritten constitution is that sort of trying to bring to apply it to current events and problems and cases, and developments and the debate continues on each one of those.
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and that's why you see the court go different ways. that's why the arguments -- [inaudible] that's why the scholarship is so important. one thing i like about the tone of the book. it's so positive. it's refreshing. you know, it's not i have all the answers. here is some answers. let's talk about it. it isn't up here. i told my clerks, when we work on opinions, you have to explain -- take your parents, they rim gaunteds, they are -- immigrants they are bright people. i don't think they are doctors or lawyers. it's their constitution too. and we should explain it and get in a they interpreted in a way to make it s&l to them. -- assessable to them. that's what i think you're trying to do with your book. to make it assessable to everyone. >> here is one concluding note. we've been talking a lot about
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the past last 225 years, sort of arc of every greater inclusion. we didn't talk as much as we might have as women suffrage. that is a huge, of course, revolutionary moment of additional inclusion. the amendment that prohibition aside, generally tend to expand liberty and equality. which is pretty striking that in general the amendments do that and don't take us back. now here is a thought experiment. one, understanding of an unwritten constitution might be the constitution is still to be written. the unfinished constitution. they're not done. history isn't over. what amendments are imaginable over the next 225 years? if we look back . >> i hope you don't expect me to hang around.
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[laughter] >> just thinking about if we -- because you and i spent a lot of our time thinking about 225 years ago, 150 years ago, 75 years ago. if we turn that time around, and try to think forward 75 years from now -- 225 years from now. any thoughts at all. these issues aren't going to come up before the court immediately. on so, you know, just thoughts on the democratic project in america or the world, you know, going forward. >> you know, i'm not that creative or that -- [inaudible] you know, i do think. i wonder when people look back, as we're looking back now, let's say we added something. will they look at what we have written and understand it?
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we actually thought about things or trying to score a point here? i would hope that we can say that we have made, at least they can say we have a made a positive contribution. as positive as you and i think of those at the convention, those who participated in the debate. they added something. you know, when we do opinions, i don't like to get to the back and forth with my colleagues and quibble. i like at the end of it to say this is what i think we should be looking at or approach we should be taking. that doesn't mean everybody should agree with me or they should change their minds. i just think that what you're trying to do is think it through, and tell them exactly what you think without personal
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attacks. there is enough of that. but just to add something. i think that we are obligationed, you and me, if we talk about the great document, we are obligated to try to improve it. >> yes. >> we are obligated to disagree. but in a way that is constructive. in a way that adds something. in a way that is worthy of the constitution. we think it's a document up here. and i think we are obligated -- you have kids. you teach them, they talk about things in a certain way and to each other in a certain way. to their parents in a certain way. to your parents in a respectful way. it's a great document. and, you know, i don't deny the flaws. i really don't. i have lived the flaws. i have lived the contradictions. i say it inspite of that. that it is to us to do he --
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it's you and . >> absolutely. that's how we . >> but it's you and i. we're talking about it. i have a job. i start again this month to go back to that job, that we're called to do. you and i have an obligations to do it in a positive way. to add something. what i don't want, is someone to say, well, you know, he was there, but he was cynical, negative, and didn't think it through. remember notice i didn't say i agreed with them. i couldn't careless. that's not my point. the point is do you think it through and communicate in a way that adds to the development that you're talking about? think about that. think about . >> first justice john marshall. the great dissent.
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ferguson. >> do we probe on the majority opinion on the dissent? it's the dissent that won the day. sixty years later, it was the dissent. so you write it in a way that contributes. did you think when he was alone in dissent. >> sole dissenter. >> we are the soul . >> which is kind of interesting. but these little tidbits as i think sometimes as my wife says i get too caught up in the little things, we read the cases other and over and over and over again. the eloquence of it. you know, to think about what he said. we have our biases, people -- and -- but this document, this is what he said, this document knows no -- [inaudible] [laughter]
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this document well. he didn't quite said that. he said it knows no color. and i truly believe he added something. at that time, he was alone. people thought they could deal with us in a constitutional way based on our skin color. i have lived that. that is a contra contradiction what do you think we held on to in the words from justice harlem. it's my understanding that said was what justice thurgood marshall what he was disupon dent and thought he was having great difficulties in doing the right thing across the country. he would read that dissent, we both read it at different points. he a great man and me a little kid. and asked a giant and a kid merely trying to get out. and you now sit in the seat that
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thurgood marshall had. >> i sit in a chair. i think he occupied his own seat. [laughter] i think the, you know, i had spent time with him, i would like to say a word. people do a lot of talking on behalf of other people. i sat with him in the meeting when i first got court . >> thurgood marshall. >> courtesy visit that was supposed to last ten minutes and lasted two and a half hours. and he regaled me with stories, and i said to him, i wish that if i had the courage and the age that i could have traveled with him across the south. but i doubt i would have had the courage that he had to do that. and he looked at me, very quietly said i had do in my time what i had to do. you have to do in your time what you have to do. that was all the guidance. and perhaps when we talk about
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the great document, it sums up the those at the convention, they had to do in their time they had to do. they did it. and we have to do in our time what we have to do. will we do it? >> so with that, let me add one additional thought. and maybe bring our proceedings to a close. this conversation i think has been in the spirit you're calling for on our sponsoring constitutions, the federalists society and the constitution accountability center. it doesn't always agree on everything. i think they both agree on the idea of a serious conversation centered on this document. since i mentioned amendments, and i don't want to make too
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many predictions. ly say most of the amendments as a prablght call -- practical matter have the support of both parties. it's hard to get two-thirds, two-thirds, three quarters without both parties being on board. the great amendment of the 1960s. the great iconic statute of the 1960 civil rights act of '64, the voting rights act of '65. fair housing act of '86. republicans and democrats in the spirit that you are calling for, and i have one other thought since we're talking about our sponsoring institutions for this extraordinary conversation, that's the national archive -- i think that the framers of the constitution who were amending their regime, studied what had gone they studied the state constitution. saw which ones worked and didn't. massachusetts put the
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constitution to a vote let's put our constitution to a vote. most of the constitutions have three banch branches of government. let's go with that. most have vie -- an independent executive works well for massachusetts and new york. let's build on that. many of the bill of rights. george mason he gives u.s. virginia bill of rights. that's model for the federal bill of rights. abolition of slavery occurred in several states. and we have to study, you know, and make amendments. what has gone before us. we have the duty to the future, i think we danger it best when we actually are understanding or respectful of the past. that's part of the national archives is about. if i could just, on a personal note, tell you the story why i'm here. and justice thomas' presence needs no explanation. he's justice thomas. what the heck am i doing here?
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well, when i was 11 years old, i came to the national archives, and i got this document that is big, big verse of the emancipation proclamation, and it was edition of the emancipation proclamation. you can take a look at the 100th anniversary of september 1962 and the archives released that a special edition for kids like me. and i got my picture of maybe lincoln. i'm a lincoln man too. [laughter] you don't throw anything out. [laughter] >> i don't. and i came here. that is what made me not cynical. coming at the very young age to a place like this. being exposed to mr. lincoln and
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what he did for the union being exposed to the decoration of independence and the constitution. i'm here today because of that, honestly. i would live -- like to give special thanks to the national archives. i want to thank you for coming to this extraordinary conversation. i want to encourage those on the television add yen to come to the place, if you can. bring your kids. bring your grand kids and your grand nephew. bring the next generation here, and if you can't come here physically, experience the national archives online. you mentioned the internet. because i think,s if up to us, the living, we can't just think about the future without thinking very deeply about the past. i think this is a place that will help us do that thinking, and so i ask all of you to join me in thanking justice thomas
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and thanking the archives. [applause] >> thank you. [applause] >> [inaudible conversations] >> more booktv in prime time every weekend come and tonight on c-span2, starting at 8 p.m. eastern look at the genealogy of first lady michelle obama.
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>> so, they put the missiles in cuba. the united states discovered that, and then the tension builds and would have a blockade around cuba. one of the things that happened during that time is the soviet submarine is found by american ships and they start to drop missile charged, depth charges on the soviet submarine. they not got the electrical system. the carbon dioxide was rising. people were passing out inside the submarine. they have no communication with the kremlin. the commander of the submarine says load the torpedoes. let's attack. the world warp probably start already up above we're not going to do somersaults data when the war is starting.
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so they launch a nuclear torpedo. they said it ready to launch. fortunately, one of the of the commanders on the ship who had a lower rate talked him out of it. they might have saved the world. >> this is so close to the age. it really was one of the scariest moments of mankind. we didn't know this. we were teenagers. we were so grateful. that's when all this criticism of kennedy and all this after korda backing. my god, we wouldn't even be here to talk. >> director oliver stone and historian peter kuznick on "the untold history of the united states," saturday night at 10 eastern on booktv is "after words." >> up next, booktv present "after words," an hour-long program where we invite guest hosts to interview authors.
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this week, dale carpenter discusses his book, flagrant conduct with david savage. the book details the start of the landmark gay-rights case lawrence v. texas from the rest of john lawrence and tyron garner, to justice can is reading of the supreme court decision in 2003. the ruling that same-sex sexual activity legal in all u.s. states and territories and paved the way for same-sex marriage laws. >> host: you've written a fine book on the supreme court case of lawrence v. texas, a book that tells the story from the beginning to the end. let me begin with sort of a big picture of question at the end. why is the lawrence case important? >> guest: i would say this is probably one of the most important civil rights decisions or constitutional individual liberty decisions from the supreme court over the past 50 years or so. and it's the most important
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decision so far for the rights of gay men and lesbians. so this is an opinion that is important a great many people, and i think will be longer but in american constitutional history. >> in other words, that was once her of law that was in effect prior to lawrence, and lawrence changed a lot in a big way. tummy a little bit about, heading into the lawrence case, where the law was before and where it was after estimate well, -- >> guest: welcome in a series of cases and laws around the country, the states have bans so-called sodomy which in included certain specified sexual acts in many, many years, but texas had decriminalized much of the old archaic sex and had solely focused on gay sex and criminalize gay sex.
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these laws came before the courts, both state courts and federal courts over the years, ending with a resounding defeat for gay civil rights advocates a supreme court decision called bowers versus hardwick in 1986. that decision had declared any, what the court called right to homosexual sodomy was at, there was no fundamental right to such a thing. that there was no right of privacy extended to protect gay people and their intimacy, even in their own homes, and even as adults. and there, the law, constitutional law stood until lawrence v. texas came along in 2003 and change that. there was a development happening at the same time, which is that the states, one by one, were either repeatedly legislatively or having
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overturned through judicial action their own state sodomy laws. so we went from situation in 1960, where all 50 states had some kind of sodomy law which applied to both heterosexual and gay sexual activity. two, by making it six, about half the states still having such laws, to 2003 when lawrence was decided in to let 13 states with such laws. so they were very much on their way out, but the constitutional doctrine upholding them still, in states like texas were resisting, repealing their laws. the courts would not return them into someone was actually arrested in a home for allegedly having sex in violation of this law. >> host: you write, i think very effectively, that it wasn't during those years that the police were in large numbers aggressively going out and arresting people, but as long as
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those laws were on the books, gays and lesbians were sort of branded as criminals under the law. i take it as some of the biggest impact of the law was on things like custody questions, adoption, jobs, employment. a whole lot of stagy to be sort of branded as a criminal as long as those laws were on the books. >> guest: that's right. the laws were only rarely enforced. in fact, we had very few known, verifiable instances enforcement of sodomy laws against private activity between adults, where no minor is involved, were a quasi-public place is involved. very few examples like that. they were few and far between. the laws were used instead as a justification, or as a pretext, for discriminating against gay men and lesbians in every area of life. and, in fact, the bowers v. hardwick decision itself from
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1986 was cited by federal courts and state courts across the country as a reason not to provide any additional judicial protection to gays and lesbians from discrimination. police departments like the dallas police department, banned the hiring of homosexuals on the grounds that these were people who were identified as a criminal class and, therefore, should not be interested with enforcing the law. gay people could be, and were, banned from being teachers in public schools on the grounds that they were modeling criminal behavior for students. gay parents lost custody of their children or had their visitation rights restricted. anti-discrimination laws of all kinds were resisted on the grounds that we should not model or protect what is essentially a criminal class of people. in every area of life, the
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sodomy laws were not so much enforced against sex, but were enforced, in fact, in other ways. >> host: there something unusual about this area of law. the laws were not actually enforced, but they had a powerful impact as long as they were on the books. and then lo and behold, the laws were enforced in september 1998 when the police went out to the rest two men in an apartment in houston for what appears to be a false report, false report at several levels. tell us how the case got under way. ..
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eubanks and tyro garner, one of the two defendants in the lawrence v. texas decision who was himself a black where eubanks was white, got into a kind of a fight or a lead, perhaps involving some jealousy and eubanks announced at one point in the evening that he was going to get a coke out of a vending machine which was down on the first floor of the apartment building in which john lawrence 11 live. he gets up from an easy chair in the living room, put down a bottle of vodka he had been drinking, goes to a roar, gets some change out and leave the apartment to go downstairs, but instead of getting a coke, he in
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fact put that money into a pay phone and called the harris county sheriff's office which was the sheriff's office involved in that area. he reported to the sheriff's office that there was a black man, referring to his partner, tyro garner, going crazy with a gun inside of john lawrence's department. there was john lawrence and tyro garner in the apartment and possibly another man and robert eubanks on the first floor making this call to the sheriff's department. that was a false report and he was charged and kept this couple weeks in jail, a quite serious offense. once that report was made it becomes a high priority call for the sheriff's office as it would for any law insurance, potentially dangerous situation
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for citizens and dangerous for any law enforcement authorities. a few sheriff's deputies patrolling the area immediately turned around in their cars and headed into the apartment complex looking for this apartment and this black man who was going crazy in a weapons disturbance. the first two arrived on the scene and countered robert eubanks at the base of the stairs to john lawrence's apartment and asked where is the man with a gun and the pointed up to the second floor at the top of stairs where there was a landing towards john lawrence's apartment, joined by three other deputies from the sheriff's department and decided to go up together and at that point they go upstairs to a technical stack, one behind the other with their guns drawn ready to deal with any weapons disturbance they might find.
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they arrive at the top of the landing and knock on the door and they say at that point this is where the stories diverge between john lawrence and tyro garner. they said they knocked on the door with the effect of opening it up. they look inside the apartment according to them and there was a light on inside of the living room, a small fleet to better apartment and presumably said police, the sheriff's department, a voice loud enough for anybody inside the apartment here, there was no radio on, no television on, nobody was talking, they couldn't hear anybody, they couldn't see anybody when they looked in. they say it is an empty room and they began to say we will search this apartment. we to go to the left looking to a bedroom on the side where they
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ultimately don't find anyone and the other two, the lead deputy who was white and another deputy who was black went toward the back of the apartment where there was a kitchen area and they say they saw a man speaking on the telephone right beside the refrigerator and told him to put his hands up which he complied with and they checked to make sure he had no weapons, secured him and at that point, they say they noticed another bed room in the back of the apartment a few feet away, still hearing nothing, no voices, no responses, having seen nobody else, inside that bedroom but the door is open so they can see from the ambient light of the living room, somewhat into the bedroom, these two officers of four, two officers purged the
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bed room door, they have their guns drawn so they're ready to deal with anything they might encounter, dangerous situation for them and anyone they encounter and tension is very high. the black police officer arrives and looks in and says he saw john lawrence and tyro garner in a sexual act. not sure what it was. he believed they were having oral sex which would violate the texas sodomy law, the homosexual conduct law in texas. that act so startled him that he lurch back, jumped back. the officer behind him who had been the first on the scene thought at that moment that he must have seen the gunslinger, the person who was threatening people in the apartment so he got into a crouching position
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with his gun pointed straight ahead he maneuvered into the bed room with the light still offer. he said he saw don lawrence and tyro garner on the bed having a will sex, not oral sex. we have a significant difference in what they say they were seeing. both of those facts would have violated the texas sodomy law. officers say they told john lawrence and tyro garner to stop what they were doing and stand back away from each other and they would not stop according to the officers. some very about male voices yelling at them inside the bed room. finally one of the officers said he flipped off a light in the bed room so everybody could see everybody very clearly now and he says they would still not stop and in fact he says john lawrence turned around and
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looked at the officer and looked back and continued what he was doing. for in excess of a minute, he says, until finally the officers had to literally pry them apart, stop them from violating the tax is homosexual conduct law. that is the story the officers tell. they say that was a violation of the texas law and doesn't matter that occurred inside a home or a public place, it was a violation either way it occurred between two people of the same sex. so they had two decisions to make about what to do. one decision was should we issue them a citation as you would someone, traffic ticket for moving violation, it was a class c misdemeanor punishable by $200 fine. it is not a jailable offense
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that you are subject to any prison time and the police officers have discretion to issue someone a warning when they violate that sort of minimal criminal law as they do when people are speeding. but the lead officer on the scene decided he was going to issue at the 11 and tyro garner tickets for having engage in homosexual conduct. part of that, we can get into, i have some ideas about that but the other decision was not simply to issue the ticket but actually to take these two men to jail and that is what the officers did, taking down the stairs with neighbors watching. john lawrence clad only in his underwear, taken to jail where they spend the evening. >> host: why did the officers
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make the decision to take these two men to jail? >> guest: yes. the officer, the lead officer and other officers on the scene, the only ones to have seen any kind of violation of the law by these two men said that they simply enforced the law and these men were violating the homosexual conduct law and it is not their job to decide which laws to enforce, they have to enforce all of them. i asked the officers about that a little bit. i asked them for example when they patrol the streets of harris county in their jurisdiction do they come across a couple parked in that country lane engage in sexual activity which is a violation of public lewdness laws, serious offense under the texas criminal code and they say that happens quite
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frequently. i said what do you do? one of the officers said we make sure nobody in the minor and it is not a rape, that it is consensual and if it is, if there is no minor involved and it is a consensual we tell the couple get your clothes back on, you shouldn't be doing that here, go back to your home and find a hotel or something. we don't issue a citation. obviously you do have discretion about whether or not to cite people for having sex. what was the difference in this case? these men were in a home assuming they grabbing sex, they had nowhere else to go to and he said it was a man and a man. what made the difference is we had two gay men here. the reason the officers gave is true. they have the power to enforce the law if they saw one
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violation which i doubt, but there are several reasons behind it and that is that the officers very quickly learned these were gay men, there was gay erotica inside the apartment, john lawrence acknowledge this and tyro garner interviews that were adopted for the book and there was a trigger that went off in their minds, triggering a kind of deep-seated antipathy for homosexuals and that had a great deal to do with the decision to fight them and the rest of them and there was the fact that john lawrence 11 was talking back to them, calling them storm troopers and suggs and telling them that he was going to call his lawyer and the lead officer in this case did not appreciate being talked to that way and they were upset because they had been called on false premise to this apartment and somebody needs to pay for that.
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>> host: you gave the basic fact of what happened and how the case went forward that these two men were arrested for having sex in their apartment, shocking that you could be arrested in 1998 in your own apartment for something like that but after reading your book i got the impression none of this was true. there is reason to doubt the basic fact that there was sex in this apartment and as lead officer you did a fine job recording them, these fellows have arrested mothers at school for dropping their kids off at the wrong place in front of the school and taking them to jail. sort of a hair trigger as far as he felt insulted, putting a person under arrest. tell us what you learned after doing a lot of reporting on what
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may have happened here. >> guest: i spoke to three of four officers who were on the scene and they were willing to speak to me and the lead officer in particular was very interesting because he made the basic decision, the priority and as they are called on the scene, makes the basic decision whether to arrest, to cite people and taken to jail. it was his call. i had people inside the harris county district attorney's office and judicial system in harris county tell me that no other officer on the force under those circumstances where you encountered people in a home would have sighted them and taken them to jail but he was the one hand naissance the gay civil rights movement was lucky in getting him to arrive first but he was closest to that apartment that night and arrived
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first and trusted with a decisionmaking authority. any other officer might never have happened. there were plenty of people willing to talk to me including the judge who was the first judge who had jurisdiction over this case and the officer himself, i asked him at one point in our interview have you ever been subject to a complaint from a citizen for any reason in the course of your duties and he laughed, why are you laughing? he said i have the largest complaint file in the entire harris county sheriff's office. i started to ask him can you tell me about some of those allegations? he proceeded to regale me with tales of complaints filed against him which were meritless
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but nevertheless appeared to have been quite numerous. he was sent to a anger management school by the sheriff's office and taken off of control for a while and sent to working jail which is a terrible demotion for a patrol officer. he really had an extraordinary record, may have been fortunate for the gay civil-rights movement that he was first to arrive on the scene. >> host: people refer to him as sir, he stopped them? he was accommodating. if they were unpleasant he took a different view. i assume john lawrence was quite unpleasant when they burst into his apartment because he didn't know anything about the supposed did man with a gun. >> you have john lawrence and tyro garner, john lawrence when the police came in was sitting
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on the couch, tyro garner was in the kitchen area on the back of the dining room table, they burn not having sex, they never had sex. the police burst in and start questioning them about who has a gun and it comes out of nowhere. he reacted quite angrily. he had been drinking a beer and acknowledged that. he was engage in his own form of civil disobedience and as i say in an interview six months before he died he told me what happened and the police had told bold faced lies about these two having sex, very upset about it and that was part of what drove him and tyro garner, to challenge the arrest which they
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ultimately decided to do after some persuasion effort. >> host: the story gets more interesting as it goes along because it is the case that john lawrence and tyro garner's preference was to say plead not guilty and say this was a totally false report, we were not having sex, the police burst in, and got angry and dragged us to jail for something we didn't do. on the other hand for the gay rights lawyers, the view was the outrage here is these laws are still on the books. they made the strategic decision to encourage or persuade john lawrence and tyro garner to plead no contest, assume fact and challenge the laws. >> guest: exactly right. john lawrence and tyro garner
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were taken to jail that night from the apartment and put into orange jumpsuits and put into the jail as anybody would be if somebody had been arrested for public intoxication at night. the next morning they are sent in front of a judge without any representation and at that point they have to enter an initial fleet and their initial plead their choice was to plead guilty, to plead no contest or plead not guilty and at this point they haven't talked to any lawyers. a year the charge and realize for the first time that they have actually been charged with having sex with each other. from their respective, that they were not actually doing that, this was as john lawrence said a bold faced lie, they were stunned by this so they pled not guilty. we are not guilty of this offense. they didn't have any larger civil-rights goals in mind, had not been involved in any case civil-rights efforts, not
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contributed to organizations, just people leading their lives and their inclination was to maybe end up paying fines but they had sensed injustice had been done to them because they had been falsely charged. they did meet with attorneys, local attorneys, how this case got into the hands of the attorneys is an interesting story we can talk about if you like in a bit. they did have a meeting with the attorneys involved and the national gay rights group became involved and they were in these areas and they said here are the three options. you can plead not guilty and these officers can be put on the stand and we can ask him to recount this tale of sexual derring-do that they say happened and we will see what happens. my guess is they would have been
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acquitted if that happens. do you complete no contest or plead not guilty and there's not much of the difference between not guilty and no contest. a pled no contest meaning the 5 only facts that made their way through the court was the facts alleged by the police, 69 word complaint filed by the deputy that night who said we entered the apartment and saw them engaged in violation of texas law. there is never a trial witnesses or cross-examination or anything like that. you accept what the state says happened and everything they say is true, nevertheless the rest is unconstitutional because it violates their constitutional rights to arrest them under those circumstances. in a meeting they had with the lawyers the lawyers explain the importance of this case, it wasn't just about them, this sort of thing would happen again.
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it had happened in the past and these laws had a larger effect that we described earlier on millions of gay americans. that meeting occurred in mid october, 1998 which you may remember, about the time that you shepherd -- matthew shepherd was left to die on a fence in wyoming and it captured the nation. all of this is going on at the same time and they persuaded the ridge larger issue than their own innocence. >> host: a big decision for them. they were taking one for the team, admitting something they say did not happen, it essentially pleading guilty to something they didn't do as a way to get a real case to
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challenge the laws. >> guest: in a lot of jurisdictions i would have thought this case would have gone away. i take it that in the end texas prosecutors and texas courts were not willing to have this case sort of go away. >> guest: the gay-rights movement in this case was lucky your blessed one might say, the police officer who arrived first made the basic decision that was also fortunate in that it had a set of prosecutors and district attorneys and judges ultimately who would not dismiss the prosecution. i think the harris county district attorney's office was backed into a political corner in this case. the district attorney is elected, elected partisan person and the county itself is quite conservative, has very traditional social views, views on social issues and once this
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matter got into the newspaper that these two men had been arrested and were going to challenge the constitutionality of the texas law it became very politically difficult for harris county district attorney's office to back off from prosecution. they were quoted in the paper as saying -- equivocating on the case by saying this might be a bad lot we don't have any choice about what laws to enforce and the best way to get a bad lot of all the books is to enforce it. so that is exactly what they ended up doing. it does turn out the one of the early prosecutors in one of the lower courts in texas was herself a lesbian at the time. she could have entered -- business the prosecution or asked the judge to dismiss it and she did not do so. she said she was required to allow the case to proceed and
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she didn't have any discretion in the matter. >> host: why don't we take a quick break. >> so they put the missiles in cuba. the united states discovered that with our surveillance flights over there and had them built and we have a blockade around cuba and one of the things that happened during that time is a soviet submarine is found by american ships and they start to drop depth charges on this soviet submarine and knocked out electrical system. carbon dioxide was rising. people were passing out inside this submarine. they had no communication with the kremlin.
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the commander of the submarine says low the torpedoes, let's attack. the war probably started already. we are not doing somersaults when the war started. they launched a nuclear tour beta, set it ready to launch. fortunately one of the other commanders talked him out of it. he might have saved the world. >> this is so close to the edge. it was one of the scariest moments in history. we were teenagers. all this criticism of kennedy and all this quarterbacking, we would not even be here to talk. >> oliver stone and peter kuz kuznick on the of the old history of the united states on booktv's afterwards, part of four days of nonfiction books
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and authors through new year's day on c-span2. >> the decision to charge lawrence v. texas and the state's willingness to defend laws that seemed vulnerable to set this case on a road through the courts, tell us a little bit about the history of these sex laws. on one hand it seems they have a very long history but also took from reading your book they have been sometimes recent history, the 1970s they were much more targeted at gays and lesbians. >> exactly right. sodomy laws in general prohibited 1 point all non merrill, non procreative sexual acts, going back hundreds and hundreds of years, go back to england and the colonies and every state, every state had
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some version of a sodomy law as of 1960. an offense as the supreme court said, these were laws of ancient origin you could call it but the supreme court in 1986 did not have a very deep or sophisticated understanding of the history of these laws. they were not laws that were targeted only at gay sex. they targeted both heterosexual and homosexual non procreative sexual acts like oral sex and in every state until late 1960s and >> host: 70s that is precisely the way they were written. in the mid-1950ss, very influential legal authority, scholar, in the united states and england suggested a number of archaic sex was be removed and sodomy laws were among those. that began a process by which
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the states began repealing sodomy laws. that process proceeded through state courts for a period of four decades. at the same time some states held on to their sodomy laws and others like texas got rid of all the rest of their archaic sex laws just about, but kept the sodomy law and narrowed it and specified it so that it applied only to deviate sexual intercourse as texas call that, only applied to same-sex sexual acts, homosexual sex. at the same time texas did that in 1973, narrowing its definition and just targeting gay people in decriminalized things like adultery which had been criminal in texas before,
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decriminalized an old law called seduction on promise of marriage, a couple others, and decriminalized bestiality. as of 1973 in texas you could legally have sex with another species but not with another person to whom you were committed and in law if that person were of the same sex. that is the remarkable message texas was sending and tried to defend that wall on the basis of traditional morality. i have never heard of a traditional morality that allows interspecies sexual acts and heterosexual sodomy but not homosexual sodomy. it was a very selective defense of the law. >> it appeared to be a reaction to the early years of the gay-rights movement, that the gay-rights movement was just getting under way in houston and texas and to some degree this was a backlash?
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>> that is right. in the 1916s, with the women's rights movement, really the sexual revolution in the united states in general there was a backlash and the gay-rights movement began the modern face began in earnest in the late 1960's, especially in 1969 in new york city where there was a backlash against the police shutting down day bars and that spread across the country, including texas cities where gay groups began to form of these were early on in the 70s, fledgling groups, so lot like the texas sodomy law where i suppose an attempt to hold onto as much of that traditional morality as the state faucet to hold on to but certainly not give ground to gays and lesbians. there was some debate over
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whether the law should subject gay men to sponge men in prison and some legislators resisted that because they said punishing gay men in prison was not a punishment. they would enjoy being in an all male environment. this was the kind of thing texas legislators were saying about gay people. the gay-rights movement did get going, it got going in a number of cities across texas including houston and enjoyed some early successes and the 70s and 80s and then it got slammed down in a referendum on a very narrow civil-rights ordnance protecting gay city employees in the houston in january of 1985, that itself was an example of this backlash against gay-rights so there was a great deal of persistence in texas and every
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year the legislature refused to repeal this lot even though it was asked to do so in the texas courts turned away any challenge to the law by saying no one has been arrested. >> host: what happened with john lawrence and tyro garner? they were arrested and prosecuted. how did their case moved through courts? >> guest: the story begins from the moment they are arrested and the lead deputy, joseph quinn, filed his charges, those charges go into the justice of the peace courts with jurisdiction over the minor criminal offenses class misdemeanors meant it is not obvious at that moment that this case would ever make its way to the supreme court because there is no sodomy law alert that goes out to the world telling gay-rights activists that somebody in some
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jurisdictions somewhere has been arrested so it could very easily have ended right fair and they might have paid their fines after getting over their anger or they might have paid a defense attorney who didn't care but wanted to collect a fee might have negotiated something smaller for them. it got in hands of gay-rights activists because the judge in which the case landed had a clerk who was a clause of the game man and he saw this charge come in on the next morning after these men had been arrested and saw the officer who had done it and he knew something was wrong. this officer was well-known in the jurisdiction and he saw the charge sodomy law which he did not know was an offense in texas and couldn't believe there was such a charge. when he tried to look up the code to enter into the
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administrative system, there was no code for the offense unlike for most of the offenses they found, he had to look it up. they may have had to make one up. >> i was surprised there was such a criminal charge in 1998, homosexual conduct leading people in the court system -- >> guest: had never heard -- no one that i spoke to in the case except for one activist in houston had ever heard of anybody being arrested on this kind of charge so it was quite unusual. he told his partner of ten years at that point with a clause of the deputy in the harris county sheriff's office who had been a supervisor over the lead of rest officer you begin to see connections all over this case, a small judicial world out there. his partner was the closet ridge officials and sergeant in the sheriff's office told his partner about this and they couldn't believe it but they had
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no inkling this was a matter of constitutional dimension so that night, the night after these men had been arrested they were talking about it and they went to their weekly trip to the gay bar in the middle of houston where they are gossiping with the bartender and they tell the bartender and guess what we saw. somebody was arrested for sodomy last night. the bartender happen to not just the person who was expert in pouring of vodka martinis but was also a gay-rights activist. once he heard of this he immediately thought this is the case we have been waiting a generation for bendixen go to the supreme court. he wasn't an attorney but he knew it had potential given that they were arrested in their home so he got in contact with lawyers who began pursuing the case in the texas court,
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initially unsuccessfully. >> host: in a texas court. >> guest: initially unsuccessfully. they went in front of the justice of the peace two months after the arrest occurred in november of 1998. the justice of the piece had no power to strike down the texas sodomy law so he find them $100 each. they went back and said $100 is not enough for us to be able to appeal. they thought you had to be fined more than $100 to be eligible to appeal your conviction so they ended up going back to the judge asking for a higher fine. >> host: please assess us of a higher fine, we would like to be charged a higher fine and the prosecutor agreed to the higher fine so they go back to the
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judge and he is somewhat surprised to hear defense counsel asking for more punishment but granted a higher punishment assessment, another $20 or so and the case proceeded through to the county criminal court where the judge did not have much power to overturn the texas sodomy law but in front of the intermediate appeals court in texas which is a couple steps below the supreme court of the united states and they confronted three partisan republican judges from very conservative areas and they were warned you don't have a chance in front of these judges, they won't listen to anything, you will have a rough time in an oral argument and it turned out they were quite surprised. turns out two of the judges at the end today ended up being persuaded by their argument that this was a violation in that
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case of the texas equal rights amendment which prohibited discrimination on the basis of sex and they said this sort of what is discrimination on the basis of sex because whether or not you are punished depends on the sex of a partner, that your intimate with. very straightforward case and they ended up ruling that way, tremendous political backlash in vote republican party in texas. the state convention was held short time after decision to end the state convention issued a resolution rebuking them calling on them to reverse their decision. so the full appeals court of texas took up the issue ended in fact reverse them quite quickly. >> host: the appeals court upheld the state law as is. did the texas supreme court here the case after that or refuse to hear it? >> guest: in texas there are the
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equivalent of two supreme courts, for civil matters and one for criminal matters. the texas supreme court handles civil matters and the court of criminal appeals handles the highest court for criminal matters so the case went to the court of criminal appeals which sat on the case for a year saying nothing, not even whether he was going to consider the issue or ordered any brief to be filed and after the year was over without explanation the court said we won't here this matter. so that your past and once that decision was made the only next step was united states supreme court. >> host: that is where lambda had in focus from the beginning. >> guest: lambda hata sense this case was going to go as high as the united states supreme court. interestingly, if they had prevailed among the two judges
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who ruled for the man the texas appeals court there would not have gone to the supreme court with this case. >> host: paying the extra fine all along the way, amusing in its own way how it got there but nevertheless the supreme court justices were very aware of this issue had been much criticized over the years since then. lambda wanted to get another case before the court. they filed a third petition and somewhere along 2002-2003. >> guest: the supreme court granted the position to hear the case. >> guest: there were two issues, one was the liberty privacy claim and equal protection claim, gays and lesbian the night for the same reason you
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stated these are clearly discriminatory. a lot of us, the likelihood was the court would take up the case focusing on equal protection. instead they focused on in this end the liberty privacy -- what is the significance of that, and did you expect that at the time, that that would be the way they handled the case? >> i would expect they would have taken of the liberty and privacy claim as you put it. i think most of the attorneys for lambda legal fought with the court would overturn the texas sodomy law it would be on the ground of equal protection. the basic difference between the two arguments is privacy, liberty, fundamental rights argument the government has no place in your bed room, they
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can't tell adults what to do with their own intimacy. the equal protection argument says if the government starts telling people what to do in their bedrooms it has to do it the same for everybody. it can select a small group of people, 3% of the population and tell them they can't do what the 97% can do and based on the fact that the court decided this issue 17 years before on the liberty and privacy ground and said at the time that those arguments are at best facetious against litigants in that case, there was a great sense that the court would not will on those grounds but would go to the other grounds. that is important because if the court had just decided the case on equal protection grounds then it would be issuing a decision in which it struck down a texas
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sodomy law allowed the bowers vs. hardwick decision to stand which had done so much damage in the law and second, it would be saying to the state you can have a sodomy law, you just have to apply that sodomy law to both heterosexual and homosexual sodomy. and that might appear equal in some sense, everybody associated, sodomy was homosexual and the popular mind. this is the thing homosexuals do. people don't understand and apply to what many heterosexuals do as well in the bed room. it would have been in some ways a disappointment though in other ways it might have been significant in itself. what joined these two arguments, liberty and privacy argument and equal protection arguments, the basic narrative of that the lambda legal attorney sketched out, they wanted to make a
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mainstream presentation to use their words and show the court there was a connection between the intimate lives of gays and lesbians and the establishment relationships and building families. that is something the supreme court's didn't see in 1986 but they did see it in 2003 and lambda legal framed the case in exactly that way, it wanted to show the court said in striking down the texas sodomy law they would not be leading the nation but following the nation. most of the country had left these laws long behind, there were only 13 states who still had the men they were almost entirely of enforced against private sexual activity. they did not want to scare the court with the possibility it was leading the nation into new uncharted territory. it would be safe and strike down the texas, sexual conduct law so that was the narrative and it was extremely effective.
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it shows throughout justice kennedy's opinion in his references to the importance of sex and intimacy and adult lives in so far as it helps to build relationships. >> host: i can think of another area where the public mind has changed so much in 20 years. the court was different in 2003 than it was in 1986 but the whole country was different. i remember at the time of the 1986 decision even then people thought it was a little bit extreme that the court would have upheld the laws in 1986 but as you said by 2003, it seemed like something -- that fact could still exist, that a person could be arrested, taken to jail for conduct in their own apartment that threatened no one, hurt 1, so it did seem very
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-- seemed like the whole country and the law had changed. when the court decided that case there was still a very sharp division within the court that ended up six of the justices voted to strike down the texas law and there were 3 dissenters. tell me about the divide in the court on that. >> guest: you are quite right to know if there was a huge shift in the courts and in the country between 1986, and 2003. in 1986 the justice actually said to a clerk i don't know any gay people. i never met any gay people and turned out the clerk he was speaking to was a positive day man. in 2003 when paul smith, the lawyer was about to deliver his oral argument to the court someone whispers in his ear, justice o'connor has just sent a baby shower gifts to a former clerk and her lesbian partner. two moments that encapsulate the sweeping change that occurred in
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the country in that generation those two moments really do offered that -- those examples. >> guest: there was a sharp divide on the court. the opinions are factored in some sense. justice kennedy ruled for five justices on the grounds of liberty and privacy. justice o'connor who had been in the majority in powers versus hardwick and had rejected privacy and liberty argument, rules on equal protection grounds which many people thought the court would do so she provides the sixth vote and then you have three votes in the minority justice scalia, chief justice rehnquist and justice thomas, justice scalia right and announces from the bench of vehement defense which see she says basically the court has taken sides in the culture war, not behaving in a fashion that can be tied to the constitution in any way, this will mean a
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slippery slope to things like bigamy and widespread obscenity and gay marriage and justice thomas writes for himself saying while he believes these laws are and commonly silly to use his expression quoting from earlier justice, if he were a texas legislator he would vote to repeal the laws, he is a judge and not a legislature and there's nothing in the constitution protecting a right to privacy so he provides a clear dissenting vote. >> host: the kennedy-scalia division is interesting. they were ronald reagan appointees from the 1980s, both of them catholics, born in the 1930s, had similar backgrounds, but on these types -- a lot of things on criminal cases, corporate -- on the culture war
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cases justice kennedy always seemed very much a california republican, a completely different instinct than justice scalia. i remember that reading of those opinions and was such a stark divide because kennedy spoke about the importance -- giving respect and dignity to gays and lesbians, their relationship to deserve the same respect and dignity as other relationships. it was such a sympathetic portrayal and so in line with what you said, the notion of the importance of relationships for gay couples. this is not a sex case. this is a case about relationships. after refinished, justice scalia cut through the air with that strong dissent, he did make a
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point that don't be fooled by what anyone tells you, this is going to be about marriage, same-sex marriage. to that extent justice scalia's prediction has turned out to be largely correct in the years since then. >> quite possibly, he was, certainly you will see what the court does with a marriage case if one comes forward and takes a marriage case which would have discretion to decide about. he did say in his defense that the court had taken up the constitutional substructure, the basic underlying principles that allowed the state to distinguish between heterosexual marriages and marriages for gay couples so he said if we can talk legislate on the basis of morality, our moral view that homosexuality is
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wrong, heterosexual marriage is right and preferred, if we can't legislate on that basis, then how can we distinguish among gay and straight couples? we can't do it because one set of couples can procreate because we allow older people and sterile couples to get married, there's no rational reason left to prefer one. and i did guess when the case comes up and is now moving up through lower courts, the gay-rights litigants are going to be fighting justice scalia's dissent as effectively correctly reading the decision as having undermined the exclusion of gay couples from marriage. >> the ft side too also that whoever writes the majority opinion in favor of same-sex marriage will cite the lawrence case, justice kennedy's phrase about the importance of the dignity and respect for gay and
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lesbian couples. >> both sides will draw justice kennedy's opinion. you can find support for both positions in justice kennedy's opinion but i'm quite certain many of the phrases in his opinion in lawrence versus texas about the liberty of gay americans and importance of relationships to them will find their way into any opinion. >> host: we only have a couple minutes left. before we finish i would like to ask, you did a lot of reporting on this and you talked to john lawrence and tyro garner and both men have passed away in the last couple years after the case was decided. tell us a little bit about lawrence and tyro garner. >> guest: they both grew up with a humble background, not much education, tyro garner was one of the tenth of ten michel burn in a black baptist family. he never had a permanent home, never had a permanent job, never
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owned a car, shifted from house to house. john lawrence had a steady job as a medical technologist but neither he nor tyro garner were ever involved in any kind of civil rights movement for civil rights cause until this case came along. tyro garner died in 2006 the year after i interviewed him and john lawrence died last november, 2011, six months after my second interview with him in which he told me the full story of what happened from his perspective. >> wanted to set the record straight about what happened in the apartment. is it true he never got to tell his story at the time the case was coming off. >> guest: he also was proud of the case and what it had accomplished. >> guest: both men were proud of the case and what it had accomplished.
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they felt they had done some good for other people. it would be part of their own legacy and they thought it was important that the state never be able to come in and arrest two people leader for actually having sex with each other or claiming they had sex and making that's enough on the basis for an arrest. that was important to both men. >> host: you did a fine job, dale carpenter, great talking with you. >> guest: nice to talk to you. >> that was after words, booktv's signature program in which the authors of the latest nonfiction books are interviewed by journalists, public policymakers, legislators and others familiar with their material. afterwards airs every weekend on booktv at 10:00 p.m. saturday, 12:00 and 9:00 sunday and 12:00 monday. you can watch afterwards on line. go to and click on
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afterwards in the booktv series and topics list on the upper right side of the page. >> more booktv in prime-time every weekend. tonight on c-span2 starting at 8:00 eastern, a look at the genealogy of michele obama. and journalist and historian david more and less on his biography of barack obama followed by more on president obama with edward kline who wrote the amateur about the president's life and career before the white house. later, the white house videographer for the first two years of the obama presidency. >> so we put the missiles in cuba, the united states discovers that with our surveillance flights over there and tension builds and we have a quarantine or blockade around cuba and one thing that happened in that time is a soviet
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submarine is found by american ships and they start to drop missile charges, depth charges on soviet submarines, knocked out the electrical system, carbon dioxide was rising. people were passing out inside the submarine. they had no communication with the kremlin. the commander of the submarine says load the torpedo, let's attack, the war probably started already, we are not going to be doing somersaults down here when the war is starting. we will not disgrace our country. launch a nuclear torpedo. they set it ready to launch. fortunately one of the other commanders on the ship who had a lower rate talked him out of it. he might have saved the world. >> this is so close to the edge. it really was one of the scariest moments in mankind's history. we didn't know this.
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we were teenagers but i am grateful. all this criticism of kennedy and after quarterbacking we would not even be here to talk. >> oliver stone and peter kuz i kuznuick on the unfold history of the united states on booktv's after words, part of four days of nonfiction books and authors through new year's day on c-span2. >> richard sander and stewart to the talk about affirmative action in preludes to the supreme court or la arguments in fisher versus university of texas. they agreed with the initial goals of affirmative action but now believe the system hurts more than helps minorities. this is about an hour and half. [applause] >> thank you for that introduction. thank you to roger and kato for sponsoring this event.
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i am grateful to have such a great kick off to the book which is being officially published today. as roger mentioned i am going to start and talk a little bit about the idea of self and what we found in the book. stuart will relate this more to fischer and what will be happening tomorrow. i am particularly glad to be doing this at cato because it stood for a lot of the values in the book. i first became aware of kato in the year 1980s when i was doing community organizing the in the evenings thinking about policy issues and going back to graduate school. and a big issue was social security reform and start trying to analyze what was happening and came up with this idea that
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social security has been structured, providing enormous subsidies people were receiving more benefits than they paid in. the interesting thing was the subsidies were largest for the upper middle-class. .. >> and another analogy to our work on affirmative action is at the time, back in the early '80s, imagine how easy it
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would have been to fix social security's problems and put it on a sound basis. thirty years later it's going to be a much harder problem to deal with. and affirmative action, i think, is analogous, because today we have perhaps the greatest degree of racial peace and in many senses the greatest feeling of racial justice in the united states we've ever had. this is a good time to deal with this issue that has been lingering for a while. we may not, we may make it harder to deal with later on, but i hope we'll make progress this year. as roger mentioned, i first got interested in the question of mismatch when i was innocently working on administrative issues for the law school where i taught. and i was very interested in the idea of academic support, hour admissions worked, how our students did after they graduated. and it didn't take long to sort
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of look at what was happening to sense that something like mismatch might be important. we were admitting students at ucla with large preferences who had about a 90% chance of graduating, but only about a 50% chance of passing the bar. welcome. >> thank you. >> so that cumulatively mention that only about 45% of the students with large preferences we were admitting actually went on smoothly through law school and got their law degrees. it wasn't hard to look at other schools in los angeles where our students with preferences would have gotten in without preferences, to see that those students seemed to have much better outcomes. so i started looking into this and looked for relevant databases that helped it's it, and by 2004-2005 developed the paper that sort of first discussed this issue in the law school context. and found that this was really quite a large problem, that
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nationally the great bulk of minority students -- especially african-american students -- were receiving very large preferences, typically on the scale of a couple hundred s.a.t. points, that bar-passing traits were item isly very poor for this group. only about a third of blacks starting law school in the early 2000s were graduating and passing the bar on their first attempt. and this was, this was affecting the lives of a very substantial, very large majority of people who were supposedly being helped by preferences. what really struck me, though, when the article came out was the institutional response. the collective unwillingnesses of a great many academics to engage this at all. the instinctive reaction of a lot of institutions to further restrict data that was there are extremely hard to get. the fact that there was really
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no high school in the country where somebody who received a large preference could get actual information about what their prospects were if they went to a particular law school. so i became interested in trying to look at this more broadly, and the thoreau foundation contacted me in 2007, and they were very interested in trying to get good, empirically-based research done, and together we commissioned a number of efforts to shake loose data from various institutions and to find social scientists who wanted to work on these problems. over time partly through that effort and partly through other independent efforts, a lot of mismatch research has been done, published in excellent journals. so we now know that science mismatch is a pervasive problem. although blacks are more like listen than similar whites to want to major in science and engineering when they go to
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college, they're much less likely to get what we call s.t.e.m. degrees if they receive a large preference. a study at the university of virginia found that if you take two blacks or two students of any color, one of whom receives a large presence, one whom momentum, the student who receives a preference has about a 0% larger -- 40% larger chance of dropping out on his way through. mismatch also accepts academically-inclined students who would like to go into academics someday but very predominantly receive low academic grades, cluster at the bottom of the class and decide that economics is not for them. the biggest mismatch experiment was in california where voters passed proposition 209, and we had a large quasi-natural experiment of what happens when racial preferences are banned from an entire university system. the results of prop 209 are extremely clear for anyone who
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bothers to look. within a half dozen years of the implementation of race neutrality, the number of blacks in the university of california system had gone up by about 30%. the number of blacks having gotten bachelor's degrees went up by about 70%. gpss had gone up, virtually every outcome had been a dramatic improvement. the only thing that critics can point to is -- as a problem with prop 209 was there were fewer african-americans at berkeley and ucla, the most elite campuses that used racial preferences when they were permitted. but those students who had been admitted to ucla were still going to uc schools, they had much higher success rates, and because berkeley and ucla had horded so many students, having the national reputation to do so, the race neutrality actually
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increased across uc campuses. one of the things we talk about in the book is a so-of called cascade effect. can i borrow that? >> sure. >> when elite universities admit students, we have a four-page photographic in the book the illustrate this, the most elite schools have the first pick at the students they would like to admit through preferences. so those schools not only admit the very top african-american students, but they also admit students who are in the second, third and fourth tiers of academic achievements. this means the second-tier schools really have to start fairly far down the ladder. and iron create, that means that the largest preferences are not used by the most elite schools, they're actually the third or fourth tier of all colleges. this is very important for a couple reasons. one is it helps explain sort of
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the strong, knee jerk defense of preferences that's often led by leaders at the most elite universities, derek bach and william bowen come to mind, because they look at their or universities, and, in fact, the effects of preferences are significantly more moderated in those contexts. the worst effects of mismatch are at the second, third and lower tiers. the second interesting effect of the cascade is it means even though 20-25% of all colleges in america use our highly-selected institutions, they absorb so much of the talented pool of minority students that even schools say second-tier state universities that imply have threshold requirements to get in are still going to have a very large disparity among students and their qualifications which is sufficiently advocated. and that means mismatch is something that effects a really broad swath of higher education. how much time do i have left?
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>> you've got another two, three minutes. >> okay. one of the things we talk about in the book is another empirical side of racial preferences, a side that's got to be prominent in the discussions at fisher which is the diversity interests of schools in having a diverse racial climate. one of the really interesting things that research has shown in recent years that we talk about some in the book is how much those diversity effects are moderated by the academic distance that exists in schools. in other words, when you admit students with large preferences, they're much less likely to socially interact with peers of other races. this has been very well documented by research, by peter and others. there's also self-doubt effects that result from getting low grades, reinforcement of stereotypes. one study even found that students who believe that they were admitted on a preference are much more vulnerable to stereotype. so diversity research, when
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looked at carefully, actually fits very closely into mismatch findings. so with all this about half the book talking about these various effects, and then we go into the problems of constitutional behavior. and that's a really large part of the problem. it's one thing to try and demonstrate these effects exist, and we think very convincing evidence does, but it's another to try to get any constitution of higher education to deal with that. one needs only look at the lineup of amicus briefs in fisher to see how incredibly uniform is the solidarity of higher education behind the existing preferences regime. it's a nonstarter. it's very difficult to try to get these issues raised. and institutions that want to follow a different path, like george mason law school -- which we have a chapter in the book about -- find themselves at the mercy of accreditation committees which want to enforce very rigid racial preference standards across all colleges.
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one of the things that we find is that even the supreme court has been somewhat complicit in the past. in grutter they issued standards for implementing preferences, but justice o'connor applied them in such a loose way that it's been very well documented by roger clegg as well as some research that we've done that schools used larger preferences more mechanically after the grutter decision in 2003. stuart's going to go much more into those issues. so we tried to write a book that would be interesting to experts, important for them to engage in, but also accessible to a much broader readership. we tried to write a book that was dispassionate about policy but passionate about the scale and severity of the problem. we'll have to let you judge whether we succeeded. thank you. [applause] >> thank you, professor sander.
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we're now going to hear from professor sander's co-author, stuart taylor, co-author of the book out just today, "mismatch." and by the way, those in the audience can purchase it just outside, otherwise just go to your local bookstore or to any of the online services to pick, to get a copy. it's published by basic books. stuart taylor, um, is an author and freelance journalist focusing on legal and policy issues. he also writes for "national journal," contributing editor, where he's a contributing editor. he's a stanford law school lecturer and occasionally a practicing lawyer, his bio says. he's also a nonresident fellow at brookings institution, his current focus is on constitutional law, media law and the supreme court. he has been a senior writer for american lawyer media, he has
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been a distinguished lecturer in writing at princeton university, a reporter and supreme court correspondent for "the new york times" and an attorney with wilmer cutler. he's a graduate of princeton university, and i believe it's the harvard -- >> harvard law school, yes. >> please welcome stuart taylor. [applause] >> thank you very much, roger. and please accept my heartfelt thanks to you and to cato for giving us this opportunity to try and talk about our new book. as rick said, i'm going to focus more on the case in the supreme court. i'll give the basics of that case, and then i'll talk a little bit about the relevance of our book's evidence about mismatch, etc., to the case. this case, we didn't know about this case when we started the book, and the case does not dwell on the issues that the
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book focuses on, but we think that solutions to issues the book focuses on are pretty similar to the solutions to the overall racial performance problem. basically, reducing the size of preferences and making them more transparent. abby fisher, abigail fisher, is a student who brought this suit. she have not admitted to the university of texas. they take roughly 10% of their -- well, no, they take roughly 85-90% of their students through what's called the top 10% plan under a law that says if you're in roughly the top 10% of your high school class in texas, you're automatically admitted to the university of texas at austin. she was not in the top 10%. she was close, but she was at a good school. she had, you know, pretty good grades. she thought she would have gotten in, but for racial preferences. she knew people she thought was less qualified, were less qualified than she was of who got in, whose grades and test
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scores were lower than hers, itself. so she sued saying she should have been admitted. she, meanwhile, went to louisiana state university, did fine and graduated. but her suit lives on. she lost in the lower courts in texas which are obliged to apply strictly the supreme court precedent. the lower courts in texas, federal district court and the u.s. court of appeals for the fifth kim cut both felt that the university of texas plan which was modeled on a plan upheld in 2003 in grutter v. bo linger, that it followed it closely enough that the court was obliged to hold it. even when judge garza who said he hated racial preferences and would love to strike them down said he had no choice but to up hold this one as a matter of supreme court precedent.
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seven of the other 16 justices on that circuit disagreed and thought you could strike it down under the grutter precedent. so the case finds its way to the supreme court, and it's likely, i think, to perhaps become the most important case in history on racial preferences. not so much because there's anything that extraordinary about this case, but the composition of the court has changed since the 2003 cases which gave a fairly green light, to grutter case, to racial preferences, very large racial preferences, it seems, as long as their camouflaged beneath a kind of complicated, holistic thing. holistic has been, that word is like we sprinkle holy water over our preferences by making them holistic. [laughter] so here's how it worked at the university of texas. they have an academic index for people applying outside the top 10%, they have a personal achievement index, and that has many components. and one of them is race.
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it is a personal achievement in texas to be born black or hispanic. it is not such a good achievement to be born hispanic -- i'm sorry, to be born asian or white, literally. that's what they call it, the perm achievement index -- personal achievement index. they also emphasize we have many kind of personal achievements we consider. race is only one little thing, often don't take it into account. that's the pitch the university of texas makes to the court and others. the numbers tell a different story. the best way to tell whether there's a racial preference in operation, whatever they call it, is to compare the entering academic credentials of different racial groups after they arrive on campus. and when you do that comparison, the most recent numbers we've seen -- 2009 -- looking at those university of texas freshmen when are accepted outside the top 10% system, the p gaps were -- the gaps were 467 s.a.t.
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points between the mean score on the s.a.t. and the mean black score. there were only 390 points between the mean white score and the mean black score on the s.a.t.. that's on a 2400 scale. those are enormous racial gaps, the idea that this is a tie breaker on little finger on the scales does not withstand analysis, and this is pretty true almost at all the big universities in the country. here, as elsewhere, the racial gaps are very large. now, from a mismatch standpoint, that means that the students who are at the lower end of those gaps are very likely to struggle academically and have the kind of problems that rick described. those problems were not the focus of this litigation. abby fisher's complaint was that she was discriminated imeps for for -- against for being white. she wasn't talking about how the black students fared, and that's
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the traditional approach. and the university of texas again claimses, well, we're just doing it the way the university of michigan law school did it, and so we're okay. there are a number of distinctions between the cases, though, that we think will help the, you know, the now-more skeptical about racial preferences court strike down tease preferences. they wouldn't have to overrule the grutter case to do so, because the grutter case justice o'connor articulated some principles that were supposed to limit the size and duration of racial preferences to avoid abuses, but she department really enforce them. -- she didn't really enforce them. but they remain on the books. you're supposed to pursue race-neutral alternatives before you resort to race. well, texas did. they have this 10% plan. they get a lot of racial diversity and other diversity from the 10% plan. did they really need to use individual racial preferences on top of it? that's one argument in her favor. another argument is the court has said no racial balancing,
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meaning you cannot try to mirror in your state's university's composition the racial proportions of the statewide population. that is unconstitutional. the court has said. well, in texas although they haven't gotten very close to racial proportionality, that is an explicit goal of our plan; we want to come closer to racial proportionality with people statewide. another principle of grutter was that this isn't supposed to go on forever. in fact, we think it should end within 25 years. nine of those 25 years are gone, so universities are supposed to be preparing to phase out racial preferences within the next 16 years. no university anywhere that we know of intends to do anything except perpetuate racial preferences as far as the eye can see for decades, maybe 50, maybe 100 years. and one way the university of texas manifests that intention is that they say they want a
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critical mass of every racial group in every class. and their trying to get there through a system of preferences that systematically channels people of different racial groups into different classes. when blacks are dropping out of science because they can't compete with the whites in science, that isn't producing critical maas. and so this -- mass. so this will go on for a very long time. how late am i? >> you're okay. >> so as rick mentioned, since grutter his research and other research has demonstrated that universities, in particular law schools, in particular the university of michigan undergraduate school and their plan was struck down by the supreme court in 2003 because they had an explicit racial point system. if you're black, you get -- if you're black or hispanic or asian, you get 20 points. if you had an a average instead of a b average in high school, you get 20 points, one full grade point. that was a little bit too explicit for justice o'connor's
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taste. she struck that down, but under the supposed holistic system that they substituted for it, they have used larger racial preferences at the university of michigan than they had before they were struck down. this doesn't seem to us to be consistent with the spirit of the supreme court decision, and the same has happened at a lot of other places. the evidence suggestions that large racial preferences, the norm is 200-400 s.a.t. points, equivalent gaps in gpa in the scores between black and white students at most schools. another principle stated in grutter was it was unconstitutional to use racial preferences to the extent that of unduly harming members of any racial group. that's a quote, unduly harming members of any racial group. we argue, and we think the evidence shows, the preferences as they use in texas unduly harm
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members of every racial group. they unduly harm the asians primarily, first and foremost, who are excluded and the whites who are excluded like abby fisher because of their race who might otherwise have been admitted. we think they do worse harm to black and hispanic students who are misled into thinking they are well qualified to have strong academic of records at the university of texas and who get there and find out that they're not going to have outstanding academic records, they'll be lucky to graduate. if so, they're likely to be at the bottom of their class. i'm not talking about black and hispanic students per se. the top student in the class might be black or hispanic, but students of any race -- and this is usually a black and hispanic preference -- who are admitted based on large preferences are not likely to do well. this is concealed from them. one minute. what does this have to do with our research? the remedy we think that the court should adopt to cure the problems abby fisher complains
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of is not to ban racial preferences. roger clegg, i think, will make a strong case for doing that. our favorite remedy would be total transparency, full disclosure of how this system works, of how large the racial gaps are and of how people fare who are admitted with large racial groups. that's number one. it's sort of a consumer protection measure so minority students will know what they're getting into, and it's also you can't make intelligent public policy about matters that are kept secret as to how they work. the second would be no racial preferences can be larger than whatever socioeconomic preferences the same school has. for example, it is now routine for the children of black doctors and lawyers or hispanic doctors and lawyers to be admitted ahead of better qualified children of white plumbers, cab drivers, asian seam stresses, middle -- working class people. so this system operates contrary to economic equalitarianism.
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it's making economic inequality in america worse not better, and i'd better stop before roger gives me the hook. thanks. ms. . [applause] >> well, thank you, stuart. and as you could see from the conclusion of the book that he just stated, um, these two folks over here would never be confused as card-carrying conservatives or libertarians. in fact, anything but that for rick sander based, obviously, on the intro that i read. stuart, on the other hand, would certainly pass as a card-caring moderate. never found an issue which he couldn't say on the one hand and on the other hand. [laughter] anyhow, we're going to hear from two critics on either side on both the book and the case,
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first from roger clegg and then from alan morrison. roger clegg is president and general come of the center for equal opportunity. he focuses on legal issues arising from civil rights laws including the regulatory impact on business and the problems in higher education created by affirmative action. a former deputy assistant attorney general in the reagan and bush administrations, clegg held the second highest positions in both the civil rights division and the environment and natural resources division. he's held several other positions in the justice department can including assistance -- department including assistant to the solicitor general and acting assistant attorney general in the office of legal policy. he is a graduate of yale law school. please welcome roger clegg. [applause] >> thank you very much, roger,
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for that nice introduction and for inviting me today. thank you to the cato institute, and thank you to rick sander and stuart taylor for writing this wonderful book. i'm going to begin by heaping praise on rick and stuart for this book. it's terrific, makes an extremely important contribution to the debate on these issues. i think an unprecedented contribution in many ways. i've read the book, and it's very readable, it's got lots of charts and die glams for those -- diagrams for those of you who like that sort of thing, and it's very well written. everybody should buy multiple copies. [laughter] give them to friends and family, people you know, people you don't know. it's a terrific book. and i should also say something about what terrific people the
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authors are. you know, it's, you know, you've got to be smart to write a really good book, but this area you also have to be brave. and particularly, i think more so for them to write a book like this than for me, i have few friends anyway -- [laughter] and i don't, you know, pal around with, you know, reporters and academics and people like that very much. rick is an academic. stuart does pal around with, you know, with reporters. these people frequently take it personally when you start attack ing correcting things like racial preferences. so, you know, i'm being a little bit humorous about this, but it is true. i mean, you know, you put your career on the line when you,
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when you say stuff like what's said in this book. and so it's not only a great book, a very brave book. however, um, nobody's perfect. [laughter] and they're not perfect, and the book is not perfect. and the main reason it's not pert -- perfect is because it doesn't quite call for the abolition of racial preferences. and in university admissions. and it should have, and someday they will. [laughter] and i'm going to, in the balance of my time, explain, you know, why the supreme court should do this in the fisher case. i'm going to begin by reading the text of the law in this area which is probably not going to be done tomorrow because it would be very embarrassing to to the supreme court. but


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